1

Reply Briefs and Rebuttal Arguments:

Getting the Most out of Having the Last Word

I. Pros and Cons of Having the Last Word

A. Cautionary Tale: Myth of Echo

In Greek mythology, Echo was a mountain nymph who tempted Zeus away from his

wife Hera. Echo tried to engage Hera in long-winded conversations, always trying to

have the last word, so Zeus could slip away unnoticed. Hera caught onto the

nymph’s ploy and cursed Echo to repeat only the last word she heard.

B. Effects of Primacy and Recency

“Many studies on primacy and recency effects in persuasion have demonstrated that

under specific conditions both the first or the last persuasive message may have a

stronger effect.” Birte Englich, Thomas Mussweiler & Fritz Strack, The Last Word in

Court—A Hidden Disadvantage for the Defense, 29 Law & Hum. Behav., 705, 720

(2005).

C. Anchoring Bias

“[R]esearch indicates the first standard or ‘anchor’ that is considered by decision

makers exerts a powerful psychological effect on judgment. . . . Although good

arguments by the defense would obviously be helpful for the accused, recent

anchoring research suggests that they would be insufficient to eliminate the

anchoring bias entirely. . . . [W]e would expect that counterarguments that are

presented to judges would be less effective at decreasing the anchoring effect than

would counterarguments self-generated by the judges.” Id. (discussing sentencing

decisions).

E.g., Beware of using your reply/rebuttal opportunity to answer set of “questions”

posed by appellee. Those questions may be intended to “anchor” the discussion to

the appellee’s theory of the case and divert the judges’ attention from the stronger

arguments available to advance the appellant’s case. Cf. Thomas A. Mauet,

Fundamentals of Trial Techniques, 273–332 (3rd ed. 1992) (“A clever defense

lawyer during his argument will throw out a series of questions and challenge the

other side to answer them during the rebuttal. Resist the temptation.”).

2

D. Built into Our Genes/Built into Our Rules

1. Psychological Phenomenon

“Whether it’s in an angry exchange of text messages, a face-to-face argument, or a

shouting match on the phone, it’s natural to want to be the one to get in the last,

definitive word. However, during the heat of an argument, that last word may be the

worst—and not the best—way to end a clash. . . . The ‘last word’ may qualify as a

successfully camouflaged attack: It doesn’t sound so bad to an outsider, but it cuts

you to the core.” Susan Krauss Whitbourne, PhD., Do You (or Your Partner) Always

Need to Have the Last Word,? Pyschology Today (May 31, 2016),

https://www.psychologytoday.com/blog/fulfillment-any-age/201605/do-you-or-

your-partner-always-need-have-the-last-word.

2. Legal Precept

Rules of legal procedure generally afford the last word to the party who bears the

burden of proof or, on appeal, the party with the task of undoing the judgment from

the trial court. See Herbert J. Stern, Trying Cases to Win: Summation, 285 (1995)

("[Mlost jurisdictions award the party with the burden of proof two closings: an

initial, main summation that is delivered first, and then a brief rebuttal following the

closing of the defense."); see also John B. Mitchell, Why Should the Prosecutor Get

the Last Word, 27 Am. J. Crim. L. 139, 145 (2000) (“the significance of having or

getting in the ‘last word’ is so deeply embedded in our culture that we all assume that

some advantage goes to she who speaks last”).

II. Reply Briefs

A. Iowa Rules of Appellate Procedure

Timing: “If a cross-appeal has not been filed, the appellant may file a proof copy of

a reply brief within 21 days after service of the appellee’s proof brief.” Iowa R. App.

P. 6.901(1)(c).

Length: “If a required brief uses a proportionally spaced typeface it shall contain no

more than 14,000 words. A reply brief shall contain no more than half of the type

volume specified for a required brief.” Iowa R. App. 6.903(g)(1).

3

Reply to reply not allowed: “There being no authority for such a pleading,

appellant’s motion to strike appellee’s reply brief and argument is sustained.” In re

Rinard’s Estate, 275 N.W. 485, 486 (Iowa 1937).

B. The Usefulness of Replying

“It’s poor advocacy to leave the opposing side’s analysis of an argument as the last

word. Not replying implies that the lawyer’s case is weak.” Gerald Lebovits, Or

Forever Hold Your Peace: Reply Briefs, 82 N.Y. St. B. ASS’N J., 64, 64 (2010)..

C. Can waiving reply brief be ineffective assistance of counsel?

“The purpose of a reply brief is to permit a response to contentions raised by an

appellee for the first time in its brief in opposition. Consequently, in the absence of

any new contentions, attorneys on appeal legitimately may forgo the filing

of a reply brief without depriving their clients of the right to counsel.”

State v. Allgier, 353 P.3d 50, 54 (Utah 2015) (emphasis added).

D. Content: What to Say in Reply?

1. No New Issues Allowed (with a limited exception)

“[W]e have long held that an issue cannot be asserted for the first time in a

reply brief. “ Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992); Mueller v. St. Ansgar

State Bank, 465 N.W.2d 659, 660 (Iowa 1991); State v. Willet, 305 N.W.2d 454, 458

(Iowa 1981).

“This rule, however, like most other rules, is not without exceptions.” State v.

Lyle, 854 N.W.2d 378, 382 (Iowa 2014). When appellee raises issue that the

appellant was unable to address in opening brief, that issue may be countered for the

first time in reply brief. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009)

(“Although the State correctly notes Carroll did not expressly assert in his initial brief

that counsel's ineffectiveness vitiated the knowing and voluntary character of the

guilty plea, we conclude the assertion was properly addressed in his reply brief under

the circumstances presented here. Carroll was not required to address the subject of

waiver until the State raised it in its initial brief.”)

2. But Rehashing Discouraged

“There are few things less palatable to appellate justices who are already

overburdened with piles of briefs to review than having to pore through

a reply brief that is nothing more than a re-organized presentation of arguments

4

already given in the opening brief. Rather than emphasizing those arguments,

counsel will find that the effect of such a reply brief will be to dilute their impact

through repetition and overstatement—and to irritate the members of the reviewing

appellate bench in the process.” Jonathan M. Purver and Lawrence E. Taylor,

Handling Criminal Appeals, Part 3 Writing the Brief, Chapter 14, The Reply Brief §

103 (Purpose).

3. Key Ingredients in Reply Briefs

a. Answer justiciability argument from appellee, e.g., why party has standing to

raise claims or why the issue is not moot or qualifies for exception to mootness

doctrine.

b. Explanation how error was preserved/or raise exception to error preservation.

c. Clarify debate over standard of review.

d. Quote passages from opposing brief that appear most susceptible to attack.

e. Address weaknesses in your own case, especially if downplayed in opening brief.

f. Make any concessions your case can afford or otherwise narrow the issues.

(Helps judges who engage in “retroreading”—that is, starting with the reply brief to

see if any claims fall out.)

g. Bring to the court’s attention any intervening case law or legislative changes that

may impact the issues in the appeal.

h. Distinguish or explain the main authority relied upon in the opposing brief.

i. Take a global approach. Don’t nitpick every slight disagreement with the

opposing brief’s rendition of the facts.

j. Refocus judges’ attention on appellant’s theory of the case. Leave the judges

feeling that both the law and the equities are on your side.

4. Don’t Sink to Petty and Unprofessional Attacks

Reply briefs can bring out the worst in advocates. Somehow the knowledge the other

side can’t strike back turns the most mild-mannered attorney into a sucker puncher.

Resist the urge! Mudslinging is not becoming. Personal attacks on opposing

5

counsel, the litigants, or the trial judge are not persuasive and will sully your own

reputation. “Unprofessional tone or tactics have no place in written advocacy.”

Lebovits, supra, at 59.

An appellate court from Indiana called out such an ill-conceived reply brief. “We

would be remiss if we did not note the inappropriate tone permeating

Appellants’ Reply Brief. Counsel accuses employers of ‘pilfering the earned wages of

Employees,’ ‘contrived ignorance,’ ‘trying to remain blissfully ignorant,’ and ‘stealing

wages.’ He also refers to Employer’s arguments as ‘ridiculous,’ ‘blatantly illogical,’

and ‘silly.’ His brief reflects a lack of professionalism. Righteous indignation is no

substitute for a well-reasoned argument.” Mitchell v. Universal Sols. of N. Carolina,

Inc., 853 N.E.2d 953, 960 n.2 (Ind. Ct. App. 2006).

5. Reply briefs in trial practice

a. No new evidence

“Although the Court granted leave to both parties to file reply briefs, the purpose of

those briefs was not for the introduction of additional evidence, but to respond with

additional argument to evidence already presented. The Court is not required to, nor

will it, permit an endless game of back and forth with regard to evidence once

summary judgment is appropriate.” Petross v. United Supermarkets, Ltd., No. 1:04-

CV-100-C, 2004 WL 1836204, at *6 (N.D. Tex. Aug. 16, 2004) (emphasis added).

b. Sur-reply briefs?

“The purpose of a sur reply is to rebut arguments advanced in an opposing party’s

reply brief or explain a position that the opposing party has attempted to refute. The

sur-reply brief may not be used to take another bite at answering an opposing party’s

motion for summary judgment—becoming nothing more than a 26–page extension

of the response brief—nor should it be employed as a tactical device to ensure that

the plaintiff steals the final word.” Gibbons v. McBride, 124 F. Supp. 3d 1342,

1383 (S.D. Ga. 2015) (emphasis added).

III. Rebuttal Arguments

A. Oral arguments not guaranteed.

“If oral argument is granted, the court shall fix the time allotted

for oral argument and notify the parties.” Iowa R. App. P. 6.908(3). Don’t save your

most persuasive points for an oral argument that may never take place.

6

B. No strict rule on content of rebuttal.

In oral arguments, apparently by tradition, the appellant is given the last word. The

time should be devoted to responding to the appellee’s key points. But this practice

is observed in the breach. Often appellants are allowed, or even encouraged, by the

bench to discuss issues which time did not allow them to reach in the opening

argument. Contra Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996) (describing

“rebuttal evidence” as “that which explains, repels, controverts, or disproves

evidence produced by the opposing party”).

C. Giving a Rebuttal Argument is a Judgment Call

“Have the maturity to know that sometimes silence is more powerful than having the

last word.” ~~ Psychology Professor Thelma Davis

Reply Briefs — Really Necessary?

The Recorder

By Mike McKee

July 30, 2008

California Supreme Court Justice Kathryn Mickle Werdegar finds them "very useful." Fourth

District Court of Appeal Justice Barton Gaut thinks they're mostly a waste of paper. And

several other appellate justices believe they'd be a lot better if lawyers put more effort into

them.

What's everyone talking about? Reply briefs.

Those often innocuous documents — which give appellants their likely last chance of getting a

lower court's jury verdict or judicial finding overturned — are actually rather controversial.

(Who knew?)

There has long been debate in appellate circles whether reply briefs serve a worthwhile

purpose. Some wonder whether justices even read them. After all, the briefs are optional at

the San Francisco-based Ninth Circuit U.S. Court of Appeals.

So to get to the bottom of this divisive issue, The Recorder recently e-mailed all 103 justices

on the California appellate bench, including the seven on the Supreme Court, asking for their

thoughts about reply briefs. Twenty-five justices responded, including Werdegar and Chief

Justice Ronald George from the Supreme Court.

By and large, the responding justices felt that reply briefs — called ARBs in court lingo (for

appellant's reply briefs) — are an integral and indispensable part of the courts' record.

Werdegar said appellants often have to use the reply brief to "confront the true strength" of an

opponent's response brief. "Thus we sometimes see a petitioner in a reply brief abandoning

weak arguments," she said, "or attempting to answer, for the first time, the most difficult

arguments against her position."

But then there was Riverside's Gaut, who said attorneys "could save a lot of time and the cost

to their clients by not preparing a reply brief." He said a respondent's brief occasionally

"requires some minor response, but even that is unusual."

The most common annoyance cited by justices was that too many attorneys commit the sins

of either simply regurgitating what they said in an opening brief or attempt to raise new issues

for the first time.

"A properly drafted reply brief can offer insight into the issues most in contention between the

parties," said Justice James Lambden of San Francisco's First District. "Regrettably, replies are

frequently ill-conceived and simply reargue the opening brief."

Justice Arthur Gilbert, of the Second District's Ventura branch, made it clear that repetition

isn't welcome.

"Perhaps this is done in the hope that what is read last makes the lasting impression," he said.

"These types of reply briefs do make an impression, but an unfavorable one."

Ten other justices complained about getting far too many rehashed reply briefs. And Chief

Justice George said he understands why that would be annoying.

"If you just repeat the arguments," he said, "they are worthless."

George, who was so keen on the subject that he called from out of state to talk, said his court

often starts working on a case before the reply brief is filed.

"Positions are staked out in the opening and response briefs," he said, "and one would start

consideration of the legal issues and modify one's tentative conclusion [based on] the reply

brief."

In other words, the Supreme Court reads them.

Reply briefs are limited to 4,200 words in the Supreme Court, but can run up to 14,000 in the

lower appeal courts. Appellate specialist Paul Fogel, a partner in Reed Smith's San Francisco

office, said the Judicial Council's Appellate Advisory Committee recently proposed that the

number of words allowed in Supreme Court reply briefs be doubled.

Currently, if an attorney wants to exceed 4,200 words in the state's high court, he or she has

to request the justices' approval.

"My experience is that the Supreme Court is very, very liberal at granting requests for more

words," Fogel said. "But one sentiment [among appellate lawyers] is, why should we invite all

these requests? Just double the number of words."

U.S. Supreme Court Justice Antonin Scalia heightened reply briefs' profile a couple of months

ago when he said that while researching his new book, "Making Your Case: The Art of

Persuading Judges," he discovered that "a lot of judges" start with the reply brief. They then

read the respondent's brief and finally the appellant's opening brief in a practice called "retro-

reading."

One self-confessed reverse reader is Justice William Bedsworth of the Fourth District's Santa

Ana branch. But he said he instead begins with the respondent's brief, followed by the reply

brief and then goes back to the appellant's opening brief.

"This helps narrow the issues for me before I read appellant's brief," he said in an e-mail.

"[There's] nothing more frustrating than spending a lot of time struggling with something in

appellant's brief, only to find respondent concedes it or attacks it on a completely different

basis than the one anticipated by the appellant.

"Same goes for reading [the] reply brief," Bedsworth added. "Appellant may abandon

something he spent 20 pages on in opening brief after hearing respondent's reply, or may

have a devastating comeback (or devastating lack of a comeback) to something respondent

says."

Fogel said that when he was a senior staff attorney for former Chief Justice Rose Bird more

than 20 years ago, he always started with the reply brief.

"The reply brief to me was the most important document in the process," he said. "It's the

appellant's last attempt to show why — notwithstanding what the respondent says — the

appellant should win."

To Daniel Kolkey, a partner in Gibson, Dunn & Crutcher's San Francisco office and a former

Third District justice, reply briefs are "the mother's milk of appellate advocacy."

"If written with honest clarity," he said, "they are not only your best opportunity to convince

the court of the bankruptcy of your adversary's arguments, they may also be your only

opportunity — given the limited time available for oral argument."

First District Justice William Stein pointed out that in 10 to 20 percent of cases, appellants

don't file a reply brief. That, he said, could mean the appellant realizes he is wrong or can't

find a way to respond to a strong argument.

"Either way," he said, "it gives you a clue it's not a strong case."

Bedsworth, of the Fourth District, said that as a former appellate lawyer and a justice for more

than a decade, he would definitely advise appellants to file a reply brief.

"Why in the world," he said, "would you ever want to give your opponent the last word before

oral argument?" Reprinted with permission from the July 29, 2008 edition of The Recorder. © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, call 749.5410 or Paula.Ryplewski@incisivemedia.com. ALM is now Incisive Media, www.incisivemedia.com